The assistance of counsel in cadet misconduct hearings is of exceptional value. All of the service academies have similar regulations pertaining to misconduct. By way of illustration, this article will use the US Military Academy regulations as a point of reference. For third and fourth class cadets, the Deputy Chief of Staff - G1 - takes final action on recommendations for separation from the Superintendent USMA.
Cadets are subject to both the Uniform Code of Military Justice (UCMJ) and military academy honor code regulations. In that regard, cadets are subject to the possibility of a court-martial for misconduct. Nonetheless, military academy court-martials are rare unless the case involves sexual assault.
Cadet misconduct cases are often confusing for parents and loved ones because of the terminology. Generally speaking, cadet cases result in either an Honor Code Investigative Hearing (AR 210-26, para 6-16), Cadet Disciplinary Cases (para 6-17), or Misconduct Hearings (USMA 1-10).
Possible punishments for all types of hearings are found in para 6-4 on page 16. Those punishments include:
Deprivation of privileges
Reduction in rank
Loss of leave
Recommendation for separation
The advice of counsel is usually not essential in cadet run hearings. Misconduct hearings under the provisions of USMA 1-10 do require at minimum a consultation. A misconduct hearing under the provisions of USMA 1-10 can result in separation. Separation most often results in a recoupment action for tuition and expenses. For a cadet near graduation, the recoupment costs can easily total over $140,000.00. A consultation with a qualified attorney is advisable.
The procedures used in Misconduct Hearing will be foreign to most cadets, parents, and even some lawyers. A couple of points are helpful:
1) Notice of a Misconduct Hearing and it's basis is required to be in writing. USMA 1-10, para. 2.
2) The Investigating Officer must provide all documents in the case file to the cadet.
3) The hearing is usually held no earlier than the 7th calendar day following notice.
4) Our experience is that hearings usually take place during the late summer before the fall semester.
5) The cadet has the right to consult with counsel before the hearing - including military counsel. The cadet does not have a right to counsel at the hearing. To the extent you hire civilian counsel, it is for the purpose of preparing the cadet to defend his or her case at the hearing and for any appeal. USMA 1-10, para. 3c.
6) The cadet may call witnesses and present evidence at the hearing.
7) The cadet can also make an opening statement and closing argument.
8) There are no rules of evidence.
9) Polygraphs and statements from the cadet taken in violation of the 5th Amendment or Article 31 are not admissible.
10) The standard of proof is probable cause.
11) The Superintendent is not bound by the Investigating Officer's recommendations. The Superintendent may consider new evidence on appeal.
12) Cadets have the option of resigning.
13) Characterization of service is usually Honorable or General Under Honorable Conditions.
14) Recoupment of educational costs can result from voluntary misconduct. para. 7-9.
15) When recoupment of educational expenses are recommended, federal law controls. 10 USC 2005
Because the costs of separation are so great in a cadet misconduct case, it is worthwhile to get a free consultation to understand your rights and the consequences of the separation action.
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